Sheo Singh and Others vs Rasgit Singh and Others

Fazl Ali, J.—It appears that in a partition suit which is pending in the Court of the Subordinate Judge at Muzaffarpur a petition was filed by all the parties on the 6th June 1933 asking for time on the ground that the parties were likely to arrive at an amicable settlement of their differences and fix their respective pattis. A pattibandi, or a sheet showing the pattis allotted to the parties, was filed before the Commissioner on the 7th August 1933. This paper was signed by plaintiff No. 1 and not by plaintiff No. 2 who is his brother, but there is no doubt that it purports to be the record of a compromise arrived at by all the parties concerned. On the 15th September 1933 a petition was filed on behalf of plaintiff 1 and plaintiff 2 alleging that the signature of plaintiff 1 on the pattibandi had been obtained fraudulently by defendant 2 on the assurance that the plaintiffs would get a patti to their own liking.

Plaintiffs 1 and 2, as I have said, are brothers, and it is not denied that plaintiff 1 is the karta of the family and it was not alleged in the petition that plaintiff 2 was unaware of the contents of the petition of the 6th June or that plaintiff 1 had signed against the wishes of the latter.

The learned Subordinate Judge, apparently overlooking the fact that the only question to be considered before him was whether the alleged compromise was one fit to be recorded or not under Order 23, Rule 3, proceeded to deal with the matter u/s 151 of the Civil P. C, which is manifestly a section to be resorted to only when no other section of the Code is available. It appears that upon enquiry the learned Subordinate Judge was not satisfied that plaintiff 1 had signed the pattibandi papers simply on the representation of defendant 2 and without knowing their contents, and his final conclusion was

that there was some sort of settlement arrived at between the parties who signed the said petition and pattibandi papers and those were the result of that settlement, but probably on a second thought plaintiff 1 did not like the pattibandi and that is why the present application has been filed.

Notwithstanding this finding he allowed the plaintiffs'' application upon a point which was not taken in the petition before him, namely, that plaintiff 1 had not been legally authorised by plaintiff 2 to sign the pattibandi on his behalf. The learned Subordinate Judge, though he concedes that plaintiff 1 was the karta of the family did not proceed to enquire if plaintiff 1 alone had been signing other papers also in connection with the proceedings. In fact I find that the application u/s 151, which is the basis of his order, has been signed only by plaintiff 1, and it appears that plaintiff 1 signed it on his own behalf as swell as on behalf of plaintiff 2.

However that may be, I have no doubt in my mind that the learned Subordinate Judge exercised his jurisdiction in the matter, if not illegally, with such material irregularity that interference by this Court becomes necessary. It appears to me to be quite clear that in the circumstances of the case the proper provision under which the Subordinate Judge should have proceeded was Order 23, Rule 3, so that whichever way he might have decided the case, the party aggrieved could have assailed his judgment by way of appeal and not have been compelled to fall back upon the somewhat precarious remedy which he has u/s 115 of the Code of Civil Procedure. In an enquiry under Order 23, Rule 3, the plain duty of the Court is to come to a conclusion as to whether there was a lawful compromise arrived at between all the parties concerned or not and although the fact that the Compromise has been signed by some of the parties and not by others may be given due weight, yet in arriving at the ultimate conclusion regard should also be had to other matters, and such matters in this case would be the relationship between two plaintiffs, the position of plaintiff 1 as the karta of the family and the part he has taken in the proceeding and the absence of any assertion on the part of plaintiff 2 that the joint family was not represented by plaintiff 1.

These observations are not in any way meant to fetter the discretion of the Court, because the case will have to be decided on the facts as they are laid before it, but as the learned Subordinate Judge did not give due weight to certain facts in his present order, they have to be emphasized. I would in these circumstances allow this application, set aside the order of the lower Court and direct him to proceed in the matter according to law. Costs will abide the result. The hearing fee in this Court is assessed at one gold mohur.